California has chance to change Three Strikes, repeal death penalty

By Tracey Kaplan and Howard Mintz tkaplan@mercurynews.com

Posted:
10/06/2012 08:00:00 AM PDT

Updated:
10/09/2012 12:38:17 PM PDT

For a state long considered loosey-goosey liberal, California has been rock-ribbed conservative on crime. Only four times in the past century have the state's voters supported ballot measures designed to ease the state's tough-on-crime laws.

But on Nov. 6, voters will have the rare option of changing that pattern. For the first time in the state's history, two major crime-related initiatives that would soften the toughest laws on the books will appear on the same ballot.

Proposition 34 would repeal the death penalty, while Proposition 36 would ease the nation's harshest Three Strikes sentencing law.

Experts say Proposition 34 will face a tougher go. It requires voters to do an about-face and reject their historical embrace of capital punishment.

In contrast, Proposition 36 asks voters to change the Three Strikes Law by reserving life sentences for the baddest of the bad -- while leaving many of its central features intact for violent, repeat criminals.

But with crime rates relatively low statewide, proponents say there has never been a better time to test whether voters in this blue state are in the mood to be less red on public safety.

"Criminal offenders have not been terribly attractive in the politics of California initiatives," said crime expert Franklin E. Zimring, a UC Berkeley law professor. "But it's not inevitable they all get turned down."

According to an analysis by this newspaper, the only measures approved by voters since 1912 to curb the power of the state's criminal justice system involved:

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Due process rights for the accused in 1934.

The right to the assistance of an attorney in 1972.

Legalization of medical marijuana in 1996.

Drug treatment rather than incarceration for certain offenders in 2000.

Eight years ago, Proposition 66, a more far-reaching attempt to weaken the Three Strikes Law, narrowly lost.

In the past 100 years, voters embraced 38 measures to strengthen the criminal justice system.

During the 1980s and early 1990s, they approved nine measures to build prisons and jails when violent crime was soaring. And in the 2000s, when it was plummeting, they beefed up penalties for gang-related felonies and sex crimes.

Even liberal politicians like former Govs. Gray Davis and Jerry Brown have advanced tough-on-crime policies. Davis didn't parole a single lifer during his five years in office. And Brown was instrumental in defeating Proposition 66 in 2004 by joining GOP Gov. Arnold Schwarzenegger and former Republican Gov. Pete Wilson in a last-minute TV blitz that swung the electorate against the measure.

But legal experts and proponents of the two independently run campaigns say California may well be ripe for change. With voters' attention more focused on economic worries and the state's multibillion-dollar deficit, the spiraling cost of the justice system may be more of a concern.

"In a time when all sorts of programs are being cut back, I think it's rational for people to decide whether they want the death penalty," said former Chief Justice Ronald George.

George, who has taken no public position on Proposition 34, is a death penalty supporter who has called California's version of it "dysfunctional."

The state also is under a federal court order to relieve prison overcrowding, a predicament that proponents of a more lenient Three Strikes measure are using to bolster their proposal to send fewer people to prison for life.

It won't hurt supporters of Propositions 34 and 36 that the state's crime rate has dropped to 1960s levels.

"Proponents of these measures see an opportunity that might not exist at a time when voters are worried about public safety," said Dan Schnur, director of the University of Southern California's Unruh Institute of Politics.

Proposition 34 gives voters the first opportunity in more than three decades to consider whether to scrap the death penalty and clear the largest death row in the nation's history. It would replace execution with life in prison without the possibility of parole and create a $100 million fund to be distributed to law enforcement agencies to help solve more homicide and rape cases.

It is opposed by law enforcement, victims' rights groups and former Republican Govs. Wilson and George Deukmejian, who argue that the death penalty should be preserved for the state's most heinous killers and that the system should be fixed and sped up, not scrapped.

With 726 inmates now on death row, California has executed just 13 murderers since 1978. No one has been executed since February 2006 because of legal challenges to the state's lethal injection procedures. Death row inmates' appeals now take decades to resolve.

The cost of carrying out the death penalty has grown so large that it has become the cornerstone of the Proposition 34 campaign. Rather than raising traditional arguments against the death penalty -- that it is unfair or risks executing the innocent -- the Yes on 34 campaign is urging voters to scrap the punishment because of the higher cost of everything from death penalty trials to housing death row inmates.

Californians continue to support the death penalty, although the margin has declined in polls since more than 70 percent of voters put the law back on the books in 1978. Two recent statewide polls, while showing a close call on Proposition 34, nevertheless showed majority support for capital punishment. And a recent Los Angeles Times/USC Dornsife poll showed that Republicans and independent voters are unswayed by the fiscal argument.

"In the death penalty situation, you're dealing with very strong, emotional reactions," said former state Attorney General John Van de Kamp, who supports Proposition 34.

In contrast, voters are responding to the two-pronged strategy of Proposition 36 backers, who argue that the current law is unfair and a waste of taxpayer dollars.

The Three Strikes initiative was crafted by a group of Stanford University law professors and modeled on a proposal written years ago by Proposition 36 backer Steve Cooley, the Republican district attorney of Los Angeles County.

California is the only one of the 26 states with Three Strikes laws to allow prosecutors to charge any felony as a third strike -- and then to lock up the offenders for 25 years to life, if a judge approves. Under the existing law, offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen to get something to eat and forging a check for $146 at Nordstrom have been sentenced to life in prison.

Opponents, including the California District Attorneys Association, say locking up repeat offenders has improved public safety -- and that the current law gives prosecutors and judges the discretion they need to put away people who seem bound to offend again, even if their most recent crime was minor.

If neither initiative passes, advocates vow to keep trying to steer the state in a different direction on crime.

"This is how you get things changed," said Michael J. Brennan, a USC law professor. "Four years from now, eight years from now, it has a much better chance of passing."

RED ON CRIME
55: Number of crime-related propositions on California ballot in the past 100 years
4: Number of measures passed that curbed power of criminal justice system
38: Number of tough-on-crime propositions that passed
13: Number of crime-related measures that failed

Proposition 36
What it does: For offenders who have never been convicted of rape, murder or child molestation, it reduces the sentence for a third-strike felony that is not "serious" or "violent" (as defined by the penal code) from life to double the usual sentence. About 3,000 current three-strikers would be eligible to apply to a judge for a reduced sentence.
Supporters: Republican Steve Cooley, district attorney of Los Angeles County; Democratic district attorneys Jeff Rosen (Santa Clara County) and George Gascon (San Francisco); liberal billionaire George Soros; NAACP Legal Defense and Educational Fund; Los Angeles police Chief Charlie Beck.
Opponents: California Republican Party; Mike Reynolds, a Fresno man who helped draft the Three Strikes Law after his daughter was slain in 1992 by two repeat offenders; Peace Officers Research Association of California.
Money raised to date in support: $2.3 million
Money raised to date against: $105,000

Proposition 34
What it does: Eliminates the death penalty and replaces it with life imprisonment without the possibility of parole, including for the 726 inmates now on death row. Creates a $100 million fund over the four years to law enforcement agencies to solve rape and homicide cases.
Supporters: Former San Quentin Warden Jeanne Woodford; American Civil Liberties Union; League of Women Voters; California Democratic Party.
Opponents: California District Attorneys Association; California State Sheriffs' Association; California Republican Party.
Money raised to date in support: $5.3 million
Money raised to date against: $246,500

STATES WITHOUT DEATH PENALTY
Seventeen states and the District of Columbia have abandoned the death penalty through legislation. But California lawmakers do not have that choice: Because voters amended the state constitution in 1978 to add the death penalty, only voters can eliminate it.
Here are the states that have already eliminated the death penalty:
Alaska (1957)
Connecticut (2012)*
Hawaii (1957)
Illinois (2011)
Iowa (1965)
Maine (1887)
Massachusetts (1984)
Michigan (1846)
Minnesota (1911)
New Jersey (2007)
New Mexico (2009)*
New York (2007)
North Dakota (1973)
Rhode Island (1984)
Vermont (1964)
West Virginia (1965)
Wisconsin (1853)
* Repeal was not retroactive, leaving inmates on death row.